Despite
strong strictures by four or five statutory bodies commenting
harshly on the complete breakdown of the rule of law in 2002, a
breakdown that could be attributed not just to dereliction of
duty but criminal negligence, the Special Investigation Team
completely ignored contemporaneous investigations conducted by
the National Human Rights Commission (NHRC) headed by former
chief justice of India JS Verma in 2002. Worse, it did not take
their detailed assessment after field visits to the state into
consideration. The Zakia Jafri criminal complaint dated 8.6.2006
seeks to assign criminal culpability to this dereliction of duty
that has been heavily and vastly commented upon argued advocate
Mihir Desai in the eleventh day of arguments before the 11th
Metropolitan Magistrate in Ahmedabad today.

The
question before the MagistrateÂ’s Court is when, four to five
Constitutional and Statutory bodies, the National Human Rights
Commission (NHRC), Central Election Commission (CEC), Supreme
Court of India and Gujarat High Court repeatedly, after field
visits and detailed examination, say that there is a
Â“comprehensive and systemic failure of the state government, its
Home Department, Police and Bureaucracy to perform fundamental
tasks, the crucial question arises now, with much greater rigour
and when reams of evidence have been collected to substantiate
and fortify these conclusions, whether certain substantive
and objective criteria exist for prosecuting responsible persons
in office for these criminal lapses. Seen in this overall
context, this shows not just a dereliction of duty and criminal
negligence but ass up to criminal acts of conspiracy and
abetment. The reason for citing these critical observations of
these bodies made in 2002, 2003, 2004 and 2012. Desai forcefully
argued, is to bring out a link and establish that when seen all
together these failures amount to more than derelictions of duty
and amount to criminal conspiracy and abetment to allow Gujarat
to burn.

Significantly unlike the much touted Â“normalcy after 72 hoursÂ”
mantra uttered by A-1 Modi and faithfully reproduced by not just
co-accused, A-37 chief secretary Subha Rao, A- 25 then DGP
Chakravarthi or then ACS (Home) A-28 Ashok Narayan and finally
pliantly accepted by the Special Investigation Team (SIT), the
NHRC report of March Â– July 2002 and August 2002 resoundingly
establish otherwise. In its Preliminary Comments at 20 (x) the
NHRC states Â“20.(x) As indicated earlier in these
Proceedings, the Commission considers it would be naÃ¯ve for it
to subscribe to the view that the situation was brought under
control within the first 72 hours. Violence continues in Gujarat
as of the time of writing these Proceedings. There was a
pervasive sense of insecurity prevailing in the State at the
time of the teamÂ’s visit to Gujarat. This was most acute among
the victims of the successive tragedies, but it extended to all
segments of society, including to two Judges of the High Court
of Gujarat, one sitting and the other retired who were compelled
to leave their own homes because of the vitiated atmosphere.
There could be no clearer evidence of the failure to control the
situation.Â”

In its
report of August 16, 2002, the CEC is as dismissive of this
cynical claim. It states at Para 31(iv) that Â“ Everywhere there
were complaints of culprits of the violence still moving around
scot-free including some prominent political persons and those
on bail. These persons threaten the displaced affected persons
to withdraw cases against them, failing which they would not be
allowed to return to their homes.Â”Â…Â” The team has cited many
other such cases from almost all the 12 districts covered by
them. [In Ahmedabad, the Commission itself observed that a large
group of Muslim families could not move to their houses because
the culprits of the riots had blocked the accesses to their
houses.]. Further it also states at Para 32 that whereas
Â“…Before the Commission, the Chief Secretary and Director
General of Police painted a similar picture of normalcy in
Gujarat. But the Additional Director General of Police
(Intelligence), Shri R.B. Sreekumar, whose views were supported
by the new Commissioner of Police, Ahmedabad, Shri K.R. Kaushik,
stated before the Commission that an undercurrent of tension and
fear was prevailing beneath the apparent normalcy in the State.
He further added that there was no interaction between the two
communities even though moderates were trying their level best,
as there were hawks in both the groups. He added that additional
forces would be required to ensure that there were no communal
clashes. And the State Government have on the CommissionÂ’s
queries subsequently been avoiding giving a clear picture on the
number and identity of persons complained against, similar
details of persons included in the FIRs, similar details of
persons who have been arrested, similar details of persons named
in the FIRs who have been enlarged on bail, similar details of
persons enlarged on bail as against whom appeals have been filed
for cancellation of their bail bonds. Â“

Both the
NHRC and the CEC take strong note of the fact that in a cynical
and disruptive form of governance those officers who were
complicit in allowing violence to break out and spread,
participative in the conspiracy to subvert justice by
registering false or diluted FIRs were promoted and rewarded
whereas those who did lawful and Constitutional work were
roundly punished. At Para 31(vii), the CEC states that Â“A large
number of IPS officers who did commendable work in preventing
the spread of violence were soon replaced. A common complaint
received was that these officers were punished for their
impartiality.Â”

Despite
this overwhelming contemporaneous evidence, the SIT simply did
try and arrive at an understanding of the ground level truth
stated Desai, the SIT did not bother to record statements of
Justices Verma or Justice Anand or the rest of the NHRC or even
try and collect evidence from them. Co-petitioner in SLP
1088/2008 before the Supreme Court, Teesta Setalvad had
repeatedly written to AK Malhotra of the SIT requesting that
such evidence be collected and assessed.

The NHRC
had first issued notice; suo moto to the state of Gujarat on
March 1, 2002, then after a formal hearing on March 6, 2002
actually conducted a field visit to the state of Gujarat between
March 19-22, 2002. Thereafter it had sought a detailed response
from the state government which was given in mid-April 2002 by
then chief secretary Subha Rao (A-37 in the complaint). This
response of the state government was strongly and adversely
commented upon by the NHRC in its hearings in May 2002, said
Desai. He also read out a letter addressed by retired high court
judge Justice Divecha to the NHRC (attached) which exposed the
complete targeted violence against members of the Muslim
minority in Ahmedabad right from the evening of February 27,
2002. Finally DivechaÂ’s home was torched and destroyed the next
day as a complaint machinery watched. Justice Kadri a sitting
judge of the High Court also had to flee and change homes for
safety. (NHRC report link given below and Attached is the letter
of Justice Divecha).

The NHRC
had first recommended transfer of investigation of major cases
to the CBI following which citizens of Gujarat and Mumbai
including Professor DN Pathak and Teesta Setalvad had approached
the Supreme Court (May 2002) for transfer of investigation. The
NHRC itself had sought the transfer of trials out of Gujarat. It
was on this writ petition filed by citizens that the Supreme
Court, in May 2008 finally appointed a SIT, it was pointed out.

The NHRC,
The CEC, the Supreme Court appointed Amicus Curiae all feel that
there is ample evidence to put before a court for trial only the
SIT wishes to close the case with no prosecution, Desai
alleged.

Desai also
argued against the common refrain that past failures to
prosecute mass crimes, be it Partition or 1984 should be
negatively offered to allow the powerful perpetrators and
conspirators to go scot free. A mature civilization and
democracy takes action when evidence exists and when the
situation critically demands. Desai argued.

About us

For over 15 years, CJP has stood for the defence of rights and dignity of the voiceless and most marginalized sections of Indian society. Bringing alive the values of individual and collective freedoms and dignities enshrined in the Indian Constitution and its Preamble, CJP has stood for equality, dignity and non-discrimination of all Indians. We have intervened in the courts to ensure accountability of persons in power and in high office. Justice, we believe, is a prerequisite for lasting peace and social harmony ...read more